State of Oregon Personal/Professional Services Contract

Transcription

1 Contract Number State of Oregon Personal/Professional Services Contract In compliance with the Americans with Disabilities Act, this document is available in alternate formats such as Braille, large print, audiotape, oral presentation, and electronic format. To request an alternate format call the State of Oregon, Department of Human Services, Office of Forms and Document Management at (503) , Fax (503) , or TTY (503) This Contract is between the State of Oregon, acting by and through its Department of Human Services, hereinafter referred to as Department, and Contractor d.b.a. Facility or Assumed Name Address Address Phone number Fax number address Contractor s home page URL, if applicable hereinafter referred to as "Contractor." Work to be performed under this Contract relates principally to the Department s Seniors and People with Disabilities Office of Licensing and Quality of Care - Contract RN Program 500 Summer Street NE, E13 Salem, OR Telephone: 503 / Facsimile: 503 /

2 I. EFFECTIVE DATE AND DURATION This Contract shall become effective on the date this Contract has been fully executed by every party and, when required, approved by Department of Administrative Services and Department of Justice or on [insert start date] (the Effective Date ), whichever date is later. Unless extended or terminated earlier in accordance with its terms, this Contract shall terminate on [insert end date] (the Termination Date ). Hereinafter, the period of time between the Effective Date and the Termination Date shall be referred to as the Term of the Contract. Contract termination shall not extinguish or prejudice Department s right to enforce this Contract with respect to any default by Contractor that has not been cured. II. CONTRACT DOCUMENTS A. This Contract includes and incorporates the exhibits listed below. Hereinafter, all references to Contract shall include all incorporated documents: 1. Exhibit A: Statement of Work 2. Exhibit B: Standard Terms and Conditions 3. Exhibit C: Insurance Requirements 4. Exhibit D: Independent Contractor Certification Statement 5. Exhibit E: Required Federal Terms and Conditions 6. Exhibit F: Contract RN Manual, [fill in date] ( Manual ) The Manual will be provided to Contractor at the orientation or is available at the local Department office, Area Agency on Aging office or County Developmental Disability Program office. The provisions of the Manual shall only implement this Contract and shall not add new covenants or otherwise alter or modify the obligations of Contractor or Department. The Manual may be amended, modified or updated from time to time during the Term of this Contract. When the Manual is amended, modified or updated, Department will notify Contractor of such changes and the provisions of the amended, modified or updated Manual will apply to this Contract. There are no other Contract documents unless specifically referenced and incorporated in this Contract. Comment [jfm1]: DOJ is determining if the attached Exhibit D is the latest version of the certification for use in DHS PSKs. Deleted: but B. This Contract shall be interpreted in the following descending order of precedence: this Contract less all exhibits, Exhibit E (Federal Provisions), Exhibit A (Statement of Work), Exhibit B (Standard Terms and Conditions), Exhibit C (Insurance), Exhibit D (Contractor Certification) and Exhibit F (the Manual). Page 2

3 IV. STATEMENT OF WORK Contractor shall perform the required services as set forth in the Statement of Work ( Work ), which is attached hereto as Exhibit A. Contractor shall perform the Work in accordance with the terms and conditions of this Contract. Formatted: Bullets and Numbering III. CONSIDERATION A. The maximum, not-to-exceed compensation payable to Contractor under this Contract, which includes any allowable expenses, is [insert dollar amount]. Department will not pay Contractor any amount in excess of the not-to-exceed amount for completing the Work, and will not pay for Work performed before the Effective Date or after the termination of this Contract. If the maximum compensation is increased by amendment of this Contract, the amendment must be fully effective before Contractor performs Work subject to the amendment. B. Subject to the conditions of this paragraph, Department guarantees a minimum payment to Contractor of one hour at the rate set forth in the Published Rate Schedule, as that term is defined in OAR , for the acceptance of referrals made by the Department or its designee. Contractor agrees to provide services identified in this Contract to at least one individual referred to Contractor during the term of this Contract. If Contractor is not due an amount equal to at least the guaranteed payment amount for services provided as a result of accepting a referral from Department, Contractor may, within 60 days following Termination, submit an invoice to Department for payment of an amount, which when added to any other payment due will total the guaranteed minimum payment amount. If Contractor fails to submit an invoice to Department within the required time, Department shall have no further obligation to Contractor for payment of the guaranteed minimum amount. C. Payments to Contactor shall be subject to ORS , and shall be made in accordance with the requirements and guidelines set forth in Exhibit A. D. Department will pay only for completed Work under this Contract. Deleted: Services Deleted: Services Deleted: Services Deleted: of the Deleted: Date Deleted: or Contractor has not fulfilled Contractor s obligation to provide services to at least one individual referred to Contractor under this Contract, Deleted: Services E. Contractor shall follow the procedures for submitting claims and invoices for payment by following the guidelines set forth in the Manual. IV. DEPARTMENT S REPRESENTATIVE Department s employee who shall act as agency representative on matters concerning this Contract is: Page 3

4 [Fill in Name] Contract RN Service Coordinator Office of Licensing and Quality of Care Seniors and People With Disabilities 500 Summer Street NE, E13 Salem, Oregon V. CONTRACTOR DATA AND CERTIFICATION A. Contractor Tax Identification and Insurance Information. Contractor shall provide Contractor s Social Security number or Contractor s federal tax ID number and the additional information set forth below. This information is requested pursuant to ORS and OAR (2). Social Security Numbers provided pursuant to this Section will be used for the administration of state, federal and local tax laws. Deleted: B. This Contract shall be interpreted in the following descending order of precedence: this Contract less all exhibits, Exhibit E (Federal Provisions), Exhibit A (Statement of Work), Exhibit B (Standard Terms and Conditions), Exhibit C (Insurance), Exhibit D (Contractor Certification) and Exhibit F (the Manual). Please print and/or type the following information: Name (exactly as filed with the IRS) Address Telephone: ( ) - Facsimile: ( ) - Citizenship (check one): Nonresident alien [ ] YES [ ] No Proof of Insurance: Professional Liability Insurance Company Policy # Expiration Date: General Liability Insurance Company Policy # Expiration Date: Oregon Registered Nurse License #: Expiration Date: Business Designation (check one): [ ] Professional Corporation [ ] Partnership [ ] Limited Partnership [ ] Limited Liability Company [ ] Limited Liability Partnership [ ] Corporation [ ] Sole Proprietorship [ ] Other Social Security # or Federal Tax I.D.# Page 4

5 Above Payment, RN License and Insurance information must be provided prior to Contract approval. Contractor shall provide proof of Insurance upon request by Department or Department designee. Department may report the information set forth above to the Internal Revenue Service (IRS) under the name and social security number or taxpayer identification number provided. B. Certification: By signature on this Contract, the undersigned hereby certifies under penalty of perjury that: 1. The undersigned is authorized to act on behalf of Contractor and that Contractor is, to the best of the undersigned s knowledge, not in violation of any Oregon Tax Laws. For purposes of this certification, Oregon Tax Laws means a state tax imposed by ORS to (Tax for Emergency Communications), 118 (Inheritance Tax), 314 (Income Tax), 316 (Personal Income Tax), 317 (Corporation Excise Tax), 318 (Corporation Income Tax), 320 (Amusement Device and Transient Lodging Taxes), 321 (Timber and Forestland Tax), 323 (Cigarettes and Tobacco Products Tax), and the elderly rental assistance program under ORS to ; and any local taxes administered by the Department of Revenue under ORS ; 2. The number shown in Section V(A) is Contractor's correct taxpayer identification and all other information provided in Section V(A) is true and accurate; 3. Contractor is not subject to backup withholding because: i. Contractor is exempt from backup withholding; ii. Contractor has not been notified by the IRS that Contractor is subject to backup withholding as a result of a failure to report all interest or dividends; or iii. The IRS has notified Contractor that Contractor is no longer subject to backup withholding; and 4. Contractor is an independent contractor as defined in ORS CONTRACTOR, BY EXECUTION OF THIS CONTRACT, HEREBY ACKNOWLEDGES THAT CONTRACTOR HAS READ THIS CONTRACT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. Page 5

6 CONTRACTOR: YOU WILL NOT BE PAID FOR SERVICES RENDERED PRIOR TO NECESSARY STATE APPROVALS CONTRACTOR By: Title: Date: Authorized Signature Department of Human Services By: Title: Date: Authorized Representative By: Date: Contracts & Procurement Local Office By: Title: Date: Authorized Signature Reviewed by Department Contract Coordinator By: Title: Date: Authorized Signature Exempt from Legal Sufficiency review pursuant to Exemption dated [Fill in Date]. Page 6

7 EXHIBIT A Statement of Work A. DEFINITIONS In addition to other terms that are specially defined within this Contract, the following definitions apply to this Contract: Deleted: which 1. Abuse is defined in ORS 419B.005, ORS , and ORS (1). 2. Assess or Assessment is defined in OAR Care Coordination Team means Contractor and the group of all other people providing services to the Client, including but not limited to physicians, pharmacists, nurse practitioners, mental health personnel, home health nurses, hospice nurses, family members, domestic partners and significant others. 4. Central Office means the Department s main office of Seniors and People with Disabilities, located at 500 Summer Street, NE, Salem Oregon Client means the individual, who resides in a private home, a residential care facility, an adult foster home or a child foster home for whom Contractor provides Services pursuant to this Contract. 6. RN/Client Health Care Plan (the Health Care Plan ) is defined in OAR Local Office means the office or offices from which Contractor receives referrals for Services and may include one or more of the following: the field office of the Department, the local Area Agency on Aging office or the County Developmental Disability Program office. 8. Services means all services provided to Clients by Contractor as described in this Exhibit A. B. CONTRACTOR S DUTIES Contractor shall perform the Services in accordance with the terms and conditions identified in this Contract. Contractor shall provide Assessment, care planning, delegation, teaching, monitoring, consultation and care coordination for eligible Clients and those who provide care for the Client. Contractor shall not duplicate Medicare home health nursing activities and shall not provide direct nursing care, except under certain prior-authorized circumstances, which are more fully described in the Manual. Under this Contract, Contractor shall not provide paid nursing Services for any of Contractor s own family members, including, but not limited to Contractor s spouse, child, grandchild, parent, grand parent or sibling. The Department will provide orientation information and services to Contractor. Contractor must attend the orientations provided by Department which include the orientation conducted at the Department s Central Office and the orientation Page 7

8 provided by the Local Office. If Contractor is providing Services for Clients who are served by different Local Offices, they must attend the orientation activities provided by each Local Office. Contractor must attend the Local Office orientation activities before providing any Services under this Contract. Contractor may provide Services prior to receiving the Central Office three-day orientation. 1. Case Manager Authorization for Services. Department s Local Office case managers will submit a referral to Contractor granting authorization to visit Clients and perform an initial comprehensive Assessment. a. Contractor shall follow specific time lines for accepting the referral and making the Assessment visit, as set forth in the Manual. b. If the Contractor and case manager determine that additional nurse monitoring visits will be made to the Client, Contractor shall develop the Health Care Plan, and the proposed schedule for visiting the Client based on the initial Assessment. The case manager must approve the schedule for visiting the Client before Contractor may commence such visitations. c. Contractor shall review the Health Care Plan with the case manager who then prior-authorizes nursing Services for Client nurse monitoring visits for up to six months. d. Contractor shall notify the case manager on an on-going basis of changes in Client condition or care status. e. Contractor shall meet with members of the Care Coordination Team, regarding each individual Client s respective Health Care Plan as needed or requested. 2. Contractor Assessment. Contractor shall visit and Assess Clients in the Clients homes, adult foster homes or child foster homes. Contractor shall not provide nursing Services to their own family members under this Contract. a. The Contractor s Assessment shall address the Client s physical, functional, mental, behavioral, and emotional status. In addition, Contractor shall Assess the environment as it relates to the Client s health and safety. b. Contractor shall Assess the care provider s ability to understand and meet the Client s health care needs. c. Contractor shall Assess the Client s medications and medication management system. The medication Assessment includes: i. Medication regime, side effects and potential interactions; Page 8

9 ii. Medication storage; iii. P.R.N. parameters, as defined in OAR (17); iv. Medication administration; v. Medication record documentation; and vi. Care provider s knowledge of the medications, actions and potential side effects. 3. Health Care Plan. Based on the Assessment, Contractor shall develop and document a Health Care Plan that addresses the Client s health care needs and how Contractor will assist the care provider and Client in meeting the goals of the Health Care Plan. 4. Delegation. Contractor shall provide delegation of nursing tasks of nursing care to Client care providers in accordance with the Oregon State Board of nursing OAR Chapter 851, Divisions 47 and Teaching. Following Contractor s assessment of Client health care needs and development of the Health Care Plan Contractor shall provide teaching, including instructions and periodic monitoring, for the Client and care providers on the subjects set forth below. The teaching includes, but is not limited to, the provision of instructions on and periodic monitoring of all of the following subjects as applicable: Formatted: Bullets and Numbering Deleted: which Comment [jfm2]: Any requirement to have DHS authorization prior to delegation? The only authorization required in paragraph 1, above, is for assessments. Comment [jfm3]: In the CAF RN Template, Training must be authorized by DHS. Upon Authorization, Contractor must conduct the training within 5 days. Here, Is there any authorization required? Any time limit for the Contractor to conduct the teaching? a. Disease conditions; b. Meeting needs relating to activities of daily living ( ADL ); c. Working with Client s behavioral symptoms; d. Performing nursing tasks; e. Administering medications; f. Preventing deterioration of Client s health; and g. Improving function. 6. Reassessment. Following significant changes in the Client condition, as determined by Contractor, Contractor reassesses the Client s condition and update the Client s Health Care Plan. (Comment) Do not make this change. Although the nurse always reassesses the client at every visit this is a special Reassessment due to significant change in client condition. The nurse is able to observe and define the change(s) because of her medical knowledge. The change(s) necessitate a change to the health care plan which has been written by the nurse. Comment [jfm4]: In the CAF Nursing template, either DHS or the Contractor can make the determination that a reassessment be done. In either case, DHS provides authorization prior to reassessment. Here, it looks like Contractor will only do a reassessment under his/her own determination, and without approval required. Deleted: shall Formatted Formatted Formatted Page 9

10 7. Consultation and Coordination with Health professionals. Contractor shall consult and coordinate the appropriate care for each Client with the Care Coordination Team, when indicated by the Assessment and Health Care Plan. 8. Intermittent Provision of Direct Care Nursing Tasks. Contractor shall provide direct nursing tasks for a Client in accordance with the Manual. C. DOCUMENTATION Contractor shall document all Services within the time frames and on Department forms found in the Manual (hereinafter Documentation ). 1. Nursing Forms. Contractor shall provide copies of completed nursing forms for the Client home file, the nursing file, and the case manager file. 2. Documentation to Case Manager. Contractor shall provide completed Documentation to the case manager prior to billing for Services. 3. Ownership of Documentation. All Contractor Documentation is the property of the Department. 4. Maintenance of File. Contractor shall maintain the Client nursing file in a confidential manner. When Contractor no longer has a relationship with the Client, Contractor shall return all Documentation regarding the Client to the Local Office, as applicable, within ten calendar days. D. DEPARTMENT POLICY GUIDELINES Contractor shall read and understand the rules, guidelines, manuals and documentation identified in this Section D. During the Term of this Contract, Contractor shall take all steps necessary to remain familiar with the rules, guidelines, manuals, policies and documentation, as they may be updated from time to time, identified in this Section D. Formatted: Bullets and Numbering Formatted: Bullets and Numbering Formatted: Bullets and Numbering Comment [jfm5]: This is the extent of the confidentiality language in the contract, except for HIPAA. (There may be more on this in the manual.) DOJ is currently working with DHS to determine if improved language is warranted here. 1. Contract RN Service Rules. Contractor shall comply with the Contract Registered Nurse Service Oregon Administrative Rules, OARs through , when providing Services under this Contract. 2. Foster Home Rules. Contractor shall be familiar with, and comply with those rules that are applicable to the Contractor role in the Adult Foster Home Rules OAR through If Contractor is providing Services in Clackamas County or Multnomah County, the Contractor shall be familiar with and comply with the Clackamas County or Multnomah County Adult Deleted: which Page 10

11 Foster Care Administrative Rules through , as applicable. 3. Nurse Practice Act. Contractor shall comply with Nurse Practice Act ORS through , and Oregon State Board of Nursing ( OSBN ) administrative rules: (renewal of License), , through (Standards and Scope of Practice for the Registered Nurse), through (Delegation to Unlicensed Persons), and through (Standards for provision of Nursing Care by a Designated Care-Giver). 4. Manual. Contractor shall comply with the provisions, guidelines, rules, policies and procedures set forth in the most current version of the Manual. 5. Mandatory Reporting. Contractor shall comply with all statutes relating to the reporting of Abuse as applicable. Without limitation, the statutes include: ORS through (elderly abuse); ORS 419B.010 (child abuse); and ORS through (abuse of persons who are mentally ill or developmentally disabled). Contractor shall report to the Local Office any instances of Abuse that Contractor personally witnesses or instances of Abuse that Contractor reasonably suspects have occurred against any Client. Additionally, during the Term of this Contract, Contractor shall report to the police or the Department any Abuse that Contractor personally witnesses or that Contractor reasonably suspects has occurred, to any Client, child, elderly person, adult with developmental disabilities or any adult with mental illness. Deleted:, E. PAYMENT PROVISIONS Contractor shall be compensated for their Services under this Contract according to the provisions of this Section E. Department shall pay Contractor at the rate set forth in the Published Rate Schedule, as that term is defined in OAR , in effect at the time of service for providing the Services as required by this Contract. 1. Minimum Availability. Except as otherwise agreed by the parties in writing, Contractor shall be available a minimum of 32 hours a month to provide Services as described in this Contract. Page 11

12 2. Invoicing. Contractor shall submit invoices to Department according to the process described in the Manual. Contractor shall not submit invoices for, and Department will not pay, any amount in excess of the not to exceed amount set forth in Section IV of this Contract. If this maximum compensation amount is increased by amendment of this Contract, the amendment must be fully effective, and all required approvals obtained, before Contractor performs Services subject to the amendment. No payment will be made for any Services performed before the beginning date or after the expiration date of this Contract, as it may be amended from time to time in accordance with its terms. Deleted: Department will 3. Billing of Client Related Services. Contractor shall follow the guidelines for billing for Client Services and orientation activities in the Manual. Contractor shall bill Department for Client related Services on the CMS 1500 billing form following training of the billing process. Contractor shall forward the billings directly to Department s Forms and Document Management department, at the address indicated in the Manual for processing. The frequency and amount of Services provided by Contractor, per Client, shall be authorized by case managers using the Prior Authorization Guidelines, set forth in the Manual. 4. Billing for Orientation Activities. Contractor shall use the form SDS 1400RN Contract RN Orientation Invoice for billing the allowed orientation hours. The allowed orientation hours are: Local Office orientation, up to four hours; Client visit orientation with a second Contract RN, up to eight hours (up to 16 hours allowed in certain specific instances described in the Manual); three day Central Office Orientation, up to 24 hours; and four hours per month for ongoing orientation for Local Office coordination activities, team meetings and other staff related functions. Contractor shall forward the completed, signed invoices to the Local Office for approval. 5. Travel. Department reimburses Contractor mileage expenses at the state rate posted at only for travel to and from the Central Office three-day orientation. Lodging for this orientation is reimbursed at the state rate posted at the website listed above, only if Contractor receives prior-authorization from the Department s Office of Licensing and Quality of Care. Travel expenses are to be billed on the SDS 1400RN invoice form. Mileage exception payments may be made as per Contract RN Mileage Exception Guidelines as more fully described in the Manual. (Comment) Do not put in only as our Exception Guidelines allow for mileage expenses to be paid in certain circumstances. 6. Transporting Clients. Contractor shall not transport Clients. Formatted Page 12

13 7. General Medicaid Billing Rules. Contractor shall review and follow the general Medicaid billing rules found in the Medical Assistance Programs rules OAR Chapter 410, Division 120, as applicable: a. Provider Enrollment. OAR regarding the agreement to comply with all applicable rules of the Medical Assistance Program and federal and state laws and regulations. b. Provision Regarding Billing of Clients. OAR regarding the submission of true and accurate information when billing the Medical Assistance Program. c. Timely Submission of Claims. OAR regarding time frames in which Services must be billed. d. Authorization of Payment. OAR regarding provision of documentation which supports the authorization and payment of Services. e. Payment. OAR regarding payment made only to Contractor. f. Buying Up. OAR regarding billing for service when a non-covered service provided. g. Requirements for Financial, Clinical and Other Records. OAR regarding the Medical Assistance Program s responsibility for auditing and verifying the accuracy and appropriateness of payment, utilization of Services, medical necessity, medical appropriateness, the quality of care, and access to care. Upon written request, Contractor shall furnish requested documentation to the Department s Office of Medical Assistance Program, the Medicaid Fraud Unit of the Department of Justice, the Oregon Secretary of State, the Department of Human Services. F. AMENDMENTS The Department reserves the right to make one or more amendments to the Contract for the Anticipated Amendments (as defined in OAR ) of increasing the maximum not-to-exceed compensation of Section III(A) of the Contract. The Department makes the following findings, as required under OAR (2)(a)(A)(ii): Page 13

14 1. The Department may issue an Anticipated Amendment if the Department refers a greater level of Services to the Contractor than originally contemplated in establishing the not-to-exceed compensation of this Contract. 2. To finalize the details and costs of the Anticipated Amendment, the Department will increase the maximum not-to-exceed compensation to sufficiently cover additional Contractor Services at the rate defined in the Contract. 3. The Department anticipates, but is not able to necessarily quantify at the time of Contract execution that there may be a greater quantity of Services referred to the Contractor based on an increased need for Services by Clients, or a shortage of available nurses in the Contractor s area to perform the Services needed by Clients. Deleted: budgeted Deleted: extra Page 14

15 EXHIBIT B Standard Terms and Conditions 1. Governing Law, Consent to Jurisdiction This Contract shall be governed by and construed in accordance with the laws of the State of Oregon without regard to principles of conflicts of law. Any claim, action, suit or proceeding (collectively, Claim ) between DHS or any other agency or department of the State of Oregon, or both, and Contractor that arises from or relates to this Contract shall be brought and conducted solely and exclusively within the Circuit Court of Marion County for the State of Oregon; provided, however, if a Claim must be brought in a federal forum, then it shall be brought and conducted solely and exclusively within the United States District Court for the District of Oregon. In no event shall this section be construed as a waiver by the State of Oregon of the jurisdiction of any court or of any form of defense to or immunity from any Claim, whether sovereign immunity, governmental immunity, immunity based on the eleventh amendment to the Constitution of the United States or otherwise. CONTRACTOR, BY EXECUTION OF THIS CONTRACT, HEREBY CONSENTS TO THE IN PERSONAM JURISDICTION OF SAID COURTS. 2. Compliance with Applicable Law a. Contractor shall comply and cause all sub-contractors to comply with all federal, state and local laws, regulations, executive orders and ordinances applicable to the Contract or to the performance of Work, as they may be adopted or amended from time to time. b. DHS performance under this Contract is conditioned upon Contractor's compliance with the obligations of contractors under ORS 279B.220, 279B.230 and 279B.235, which are incorporated by reference herein. Contractor shall, to the maximum extent economically feasible in the performance of this Contract, use recycled paper (as defined in ORS 279A.010(cc)), recycled PETE products (as defined in ORS 279A.010(ff)), and other recycled plastic resin products and recycled products (as recycled product is defined in ORS 279A.010(gg). c. In compliance with the Americans with Disabilities Act, any written material that is generated and provided by Contractor under this Contract to DHS clients, including Medicaid-Eligible Individuals, shall, at the request of such DHS clients, be reproduced in alternate formats of communication, to include Braille, large Page 15

16 print, audiotape, oral presentation, and electronic format. DHS shall not reimburse Contractor for costs incurred in complying with this provision. Contractor shall cause all subcontractors under this Contract to comply with the requirements of this provision. 3. Independent Contractor a. The parties agree and acknowledge that their relationship under this Contract is that of independent contracting parties and that Contractor is not an officer, employee, or agent of the State of Oregon as those terms are used in ORS or otherwise. b. Contractor is responsible for all federal state and local taxes applicable to compensation or payments paid to Contractor under this Contract and, unless Contractor is subject to backup withholding, DHS is not required to withhold any amounts from such compensation or payments to cover Contractor s federal, state or local tax obligations. Contractor is not eligible for any federal Social Security, unemployment insurance or workers compensation benefits from compensation or payments paid to Contractor under this Contract, except as a self-employed individual. 4. Representations and Warranties a. Contractor s Representations and Warranties. Contractor represents and warrants to DHS that: (i) (ii) (iii) (iv) (v) (vi) Contractor is qualified to do business in the State of Oregon and has the authority to enter into and perform this Contract, Contract constitutes a valid and binding obligation of Contractor enforceable in accordance with its terms, Work will be performed in a timely, professional and workmanlike manner by qualified personnel in accordance with applicable professional standards, Contractor shall, at all times during the term of this Contract, be qualified, professionally competent, and duly licensed to perform the Work, Contractor prepared its proposal related to this Contract, if any, independently from all other proposers, and without collusion, fraud, or other dishonesty, Contractor is not in violation of, charged with nor, to the best of Contractor s knowledge, under any investigation with respect to violation Page 16

17 of, any provision of any federal, state or local law, ordinance or regulation or any other requirement or order of any governmental or regulatory body or court or arbitrator applicable to provision of the Work, and Contractor s provision of the Work shall not violate any such law, ordinance, regulation or order, (vii) Neither Contractor nor any individual with an ownership interest in Contractor has been convicted of any criminal offense related to any program under Title XVIII, Title XIX or SSBG, (viii) If Contractor is currently employed by the State of Oregon or the Federal Government, Contractor s performance under this Contract creates no potential or actual conflict of interest as defined by ORS Chapter 244 and, no rules or regulations of Contractor s employing agency (state or federal) would prohibit Contractor s activities under this Contract, and (ix) Contractor has no interest, and will not acquire any interest, direct or indirect, that would conflict with its performance under this Contract. b. Warranties cumulative. The warranties set forth in this section are in addition to, and not in lieu of, any other warranties provided. 5. Time is of the Essence Contractor agrees that time is of the essence under this Contract. 6. Funds Available and Authorized; Payments Contractor shall not be compensated for Work performed under this Contract by any other agency or department of the State of Oregon. DHS certifies that it has sufficient funds currently authorized for expenditure to finance the costs of this Contract within DHS current biennial appropriation or limitation. Contractor understands and agrees that DHS payment for Work performed is contingent on DHS receiving appropriations, limitations, allotments or other expenditure authority sufficient to allow DHS, in the exercise of its reasonable administrative discretion, to continue to make payments under this Contract. 7. Recovery of Overpayments If billings under this Contract, or under any other contract between Contractor and DHS, result in payments to Contractor to which Contractor is not entitled, DHS, after giving written notification to Contractor, may withhold from payments due to Contractor such amounts, over such periods of time, as are necessary to recover the amount of the overpayment. 8. Ownership of Work Product Page 17

18 All work products, including reports, files, documents and other materials which are delivered to DHS pursuant to this Contract ( Work Products ) are the exclusive property of DHS. DHS and Contractor intend that such Work Products be deemed works made for hire of which DHS is deemed the author. If for any reason any such Work Products is not deemed works made for hire, Contractor hereby irrevocably assigns to DHS all of its right, title and interest in and to any and all such Work Products, whether arising from copyright, patent, trademark, trade secret, or any other state or federal intellectual property law or doctrine. Contractor forever waives any and all rights relating to such Work Products, including without limitation, any and all rights arising under 17 USC 106A or any other rights of identification of authorship or rights of approval, restriction or limitation on use or subsequent modifications or the development of derivative works. Contractor shall execute such documents and instruments as DHS may reasonably request in order to record or perfect the assignments required under this Section 8 and to fully vest such rights in DHS. In the event any right (including without limitation, any moral right) in such Work Products cannot be assigned, Contractor hereby waives enforcement anywhere in the world of such right against DHS and exclusively licenses such right to DHS. 9. Indemnity a. GENERAL INDEMNITY. CONTRACTOR SHALL DEFEND, SAVE, HOLD HARMLESS, AND INDEMNIFY THE STATE OF OREGON AND DHS AND THEIR OFFICERS, EMPLOYEES AND AGENTS FROM AND AGAINST ALL CLAIMS, SUITS, ACTIONS, LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES OF ANY NATURE WHATSOEVER, INCLUDING ATTORNEYS FEES, RESULTING FROM, ARISING OUT OF, OR RELATING TO THE ACTIVITIES OF CONTRACTOR OR ITS OFFICERS, EMPLOYEES, SUBCONTRACTORS, OR AGENTS UNDER THIS CONTRACT. b. INDEMNITY FOR INFRINGEMENT CLAIMS. WITHOUT LIMITING THE GENERALITY OF SECTION 9(a), CONTRACTOR EXPRESSLY AGREES TO DEFEND, INDEMNIFY, AND HOLD DHS, THE STATE OF OREGON AND THEIR AGENCIES, SUBDIVISIONS, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES HARMLESS FROM ANY AND ALL CLAIMS, SUITS, ACTIONS, LOSSES, LIABILITIES, COSTS, EXPENSES, INCLUDING ATTORNEYS FEES, AND DAMAGES ARISING OUT OF OR RELATED TO ANY CLAIMS THAT THE WORK, THE WORK PRODUCT OR ANY OTHER TANGIBLE OR INTANGIBLE ITEMS DELIVERED TO DHS BY CONTRACTOR THAT MAY BE THE SUBJECT OF PROTECTION UNDER ANY STATE OR FEDERAL Page 18

19 INTELLECTUAL PROPERTY LAW OR DOCTRINE, OR DHS USE THEREOF, INFRINGES ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK, TRADE DRESS, MASK WORK, UTILITY DESIGN, OR OTHER PROPRIETARY RIGHT OF ANY THIRD PARTY; PROVIDED, THAT THE STATE OF OREGON SHALL PROVIDE CONTRACTOR WITH PROMPT WRITTEN NOTICE OF ANY INFRINGEMENT CLAIM. c. CONTROL OF DEFENSE AND SETTLEMENT. CONTRACTOR SHALL HAVE CONTROL OF THE DEFENSE AND SETTLEMENT OF ANY CLAIM THAT IS SUBJECT TO THIS SECTIONS 9(a) OR 9(b); HOWEVER, NEITHER CONTRACTOR NOR ANY ATTORNEY ENGAGED BY CONTRACTOR SHALL DEFEND THE CLAIM IN THE NAME OF THE STATE OF OREGON OR ANY AGENCY OF THE STATE OF OREGON, NOR PURPORT TO ACT AS LEGAL REPRESENTATIVE OF THE STATE OF OREGON OR ANY OF ITS AGENCIES, WITHOUT FIRST RECEIVING FROM THE ATTORNEY GENERAL, IN A FORM AND MANNER DETERMINED APPROPRIATE BY THE ATTORNEY GENERAL, AUTHORITY TO ACT AS LEGAL COUNSEL FOR THE STATE OF OREGON, NOR SHALL CONTRACTOR SETTLE ANY CLAIM ON BEHALF OF THE STATE OF OREGON WITHOUT THE APPROVAL OF THE ATTORNEY GENERAL. THE STATE OF OREGON MAY, AT ITS ELECTION AND EXPENSE, ASSUME ITS OWN DEFENSE AND SETTLEMENT IN THE EVENT THAT THE STATE OF OREGON DETERMINES THAT CONTRACTOR IS PROHIBITED FROM DEFENDING THE STATE OF OREGON, OR IS NOT ADEQUATELY DEFENDING THE STATE OF OREGON S INTERESTS, OR THAT AN IMPORTANT GOVERNMENTAL PRINCIPLE IS AT ISSUE AND THE STATE OF OREGON DESIRES TO ASSUME ITS OWN DEFENSE. 10. Default; Remedies; Termination a. Default by Contractor. Contractor shall be in default under this Contract if: (i) (ii) Contractor institutes or has instituted against it insolvency, receivership or bankruptcy proceedings, makes an assignment for the benefit of creditors, or ceases doing business on a regular basis; or Contractor no longer holds a license or certificate that is required for Contractor to perform its obligations under the Contract and Contractor has not obtained such license or certificate within fourteen (14) calendar days after DHS notice or such longer period as DHS may specify in such notice; or Page 19

20 (iii) Contractor commits any material breach or default of any covenant, warranty, obligation or agreement under this Contract, fails to perform the Work under this Contract within the time specified herein or any extension thereof, or so fails to pursue the Work as to endanger Contractor's performance under this Contract in accordance with its terms, and such breach, default or failure is not cured within 14 calendar days after DHS notice, or such longer period as DHS may specify in such notice. b. DHS Remedies for Contractor s Default. In the event Contractor is in default under Section 10(a), DHS may, at its option, pursue any or all of the remedies available to it under this Contract and at law or in equity, including, but not limited to: (i) (ii) (iii) (iv) Termination of this Contract under Section 10(e)(ii); Withholding all monies due for Work and Work Products that Contractor has failed to deliver within any scheduled completion dates or has performed inadequately or defectively; Initiation of an action or proceeding for damages, specific performance, or declaratory or injunctive relief; Exercise of its right of recovery of overpayments under Section 7 of this Contract or setoff, or both. These remedies are cumulative to the extent the remedies are not inconsistent, and DHS may pursue any remedy or remedies singly, collectively, successively or in any order whatsoever. If a court determines that Contractor was not in default under Section 10(a), then Contractor shall be entitled to the same remedies as if this Contract was terminated pursuant to Section 10(e)(i). c. Default by DHS. DHS shall be in default under this Contract if DHS commits any material breach or default of any covenant, warranty, or obligation under this Contract, and such breach or default is not cured within thirty (30) calendar days after Contractor s notice or such longer period as Contractor may specify in such notice. d. Contractor s Remedies for DHS Default. In the event DHS terminates the Contract under Section 10(e)(i), or in the event DHS is in default under Section 10(c) and whether or not Contractor elects to exercise its right to terminate the Contract under Section 10(e)(iii), Contractor s sole monetary remedy shall be (i) with respect to Work compensable at a stated rate, a claim Page 20

21 for unpaid invoices, time worked within any limits set forth in this Contract but not yet invoiced, authorized expenses incurred and interest within the limits permitted under ORS , and (ii) with respect to deliverable-based Work, a claim for the sum designated for completing the deliverable multiplied by the percentage of Work completed and accepted by DHS, less previous amounts paid and any claim(s) that DHS has against Contractor. In no event shall DHS be liable to Contractor for any expenses related to termination of this Contract or for anticipated profits. If previous amounts paid to Contractor exceed the amount due to Contractor under this Section 10(d), Contractor shall immediately pay any excess to DHS upon written demand. If Contractor does not immediately pay the excess, DHS may recover the overpayments in accordance with Section 7, Recovery of Overpayments, and may pursue any other remedy that may be available to it. e. Termination (i) DHS Right to Terminate at its Discretion. At its sole discretion, DHS may terminate this Contract: (A) For its convenience upon thirty (30) days prior written notice by DHS to Contractor; (B) Immediately upon written notice if DHS fails to receive funding, appropriations, limitations, allotments or other expenditure authority at levels sufficient to pay for the Work or Work Products; (C) Immediately upon written notice if federal or state laws, regulations, or guidelines are modified or interpreted in such a way that DHS purchase of the Work or Work Products under this Contract is prohibited or DHS is prohibited from paying for such Work or Work Products from the planned funding source; or (D) Immediately upon written notice to Contractor if there is a threat to the health, safety, or welfare of any DHS client, including any Medicaid-Eligible Individual, under its care. (ii) DHS Right to Terminate for Cause. In addition to any other rights and remedies DHS may have under this Contract, DHS may terminate this Contract immediately upon written notice by DHS to Contractor, or at such later date as DHS may establish in such notice, or upon expiration of the time period and with such notice as provided in Section 10(e)(ii)(B) or Section 10(e)(ii)(C) below, upon the occurrence of any of the following events: Page 21

22 (A) Contractor is in default under Section 10(a)(i) because Contractor institutes or has instituted against it insolvency, receivership or bankruptcy proceedings, makes an assignment for the benefit of creditors, or ceases doing business on a regular basis; (B) Contractor is in default under Section 10(a)(ii) because Contractor no longer holds a license or certificate that is required for it to perform Work under the Contract and Contractor has not obtained such license or certificate within fourteen (14) calendar days after DHS notice or such longer period as DHS may specify in such notice; or (C) Contractor is in default under Section 10(a)(iii) because Contractor commits any material breach or default of any covenant, warranty, obligation or agreement under this Contract, fails to perform the Work under this Contract within the time specified herein or any extension thereof, or so fails to pursue the Work as to endanger Contractor's performance under this Contract in accordance with its terms, and such breach, default or failure is not cured within 14 calendar days after DHS notice, or such longer period as DHS may specify in such notice. (iii) Contractor s Right to Terminate for Cause. Contractor may terminate this Contract with such written notice to DHS as provided in this Section 10(e)(iii), or at such later date as Contractor may establish in such notice, if DHS is in default under Section 10(c) because DHS commits any material breach or default of any covenant, warranty, or obligation under this Contract, fails to perform its commitments hereunder within the time specified or any extension thereof, and DHS fails to cure such failure within thirty (30) calendar days after Contractor s notice or such longer period as Contractor may specify in such notice. (iv) Mutual Termination. The Contract may be terminated immediately upon mutual written consent of the parties or at such other time as the parties may agree in the written consent. (v) Return of Property. Upon termination of this Contract for any reason whatsoever, Contractor shall immediately deliver to DHS all of the DHS property (including without limitation any Work Products for which DHS has made payment in whole or in part) that are in the possession or under the control of Contractor in whatever stage of development and form of recordation such DHS property is expressed or embodied at that time. Upon receiving a notice of termination of this Contract, Contractor shall Page 22

23 immediately cease all activities under this Contract, unless DHS expressly directs otherwise in such notice of termination. Upon DHS request, Contractor shall surrender to anyone DHS designates, all documents, research or objects or other tangible things needed to complete the Work Products. 11. Limitation of Liabilities EXCEPT FOR LIABILITY ARISING UNDER OR RELATED TO SECTION 9 OR SECTION 10(e)(ii), NEITHER PARTY SHALL BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS CONTRACT. 12. Insurance Contractor shall maintain insurance as set forth in Exhibit C, which is attached hereto. 13. Records Maintenance, Access Contractor shall maintain all financial records relating to this Contract in accordance with generally accepted accounting principles. In addition, Contractor shall maintain any other records, books, documents, papers, plans, records of shipments and payments and writings of Contractor, whether in paper, electronic or other form, that are pertinent to this Contract, in such a manner as to clearly document Contractor's performance. All financial records, other records, books, documents, papers, plans, records of shipments and payments and writings of Contractor whether in paper, electronic or other form, that are pertinent to this Contract, are collectively referred to as Records. Contractor acknowledges and agrees that DHS and the Secretary of State's Office and the federal government and their duly authorized representatives shall have access to all Records to perform examinations and audits and make excerpts and transcripts. Contractor shall retain and keep accessible all Records for the longer of: (i) six (6) years following final payment and termination of this Contract; (ii) the period as may be required by applicable law, including the records retention schedules set forth in OAR Chapter 166; or (iii) until the conclusion of any audit, controversy or litigation arising out of or related to this Contract. 14. Force Majeure Neither DHS nor Contractor shall be held responsible for delay or default caused by fire, riot, acts of God, power outage, government fiat, terrorist acts or other acts of political sabotage, civil unrest, labor unrest, or war, where such cause is beyond the reasonable control of DHS or Contractor, respectively. Contractor shall, however, make all reasonable efforts to remove or eliminate such a cause of delay or default and shall, upon the cessation of the cause, diligently pursue performance of its obligations under this Contract. Page 23

24 15. Foreign Contractor If Contractor is not domiciled in or registered to do business in the State of Oregon, Contractor shall promptly provide to the Department of Revenue and the Secretary of State Corporation Division all information required by those agencies relative to this Contract. 16. Assignment of Contract, Successors in Interest a. Contractor shall not assign or transfer its interest in this Contract without prior written consent of DHS. Any such assignment or transfer, if approved, is subject to such conditions and provisions as DHS may deem necessary. No approval by DHS of any assignment or transfer of interest shall be deemed to create any obligation of DHS in addition to those set forth in the Contract. b. The provisions of this Contract shall be binding upon and inure to the benefit of the parties, their respective successors, and permitted assigns. 17. Subcontracts Contractor shall not enter into any subcontracts for any of the Work required by this Contract without DHS prior written consent. In addition to any other provisions DHS may require, Contractor shall include in any permitted subcontract under this Contract provisions to ensure that DHS will receive the benefit of subcontractor performance as if the subcontractor were the Contractor with respect to Sections 1, 2, 3, 4, 7, 8, 9, 13, 15, 16, 17 and 18 of this Exhibit B. DHS consent to any subcontract shall not relieve Contractor of any of its duties or obligations under this Contract. 18. No Third Party Beneficiaries DHS and Contractor are the only parties to this Contract and are the only parties entitled to enforce its terms. The parties agree that Contractor s performance under this Contract is solely for the benefit of DHS to accomplish its statutory mission. Nothing in this Contract gives, is intended to give, or shall be construed to give or provide any benefit or right, whether directly, indirectly or otherwise, to third persons any greater than the rights and benefits enjoyed by the general public unless such third persons are individually identified by name herein and expressly described as intended beneficiaries of the terms of this Contract. 19. Amendments; Waiver; Consent DHS may amend this Contract to the extent provided in the solicitation document, if any, from which this Contract arose, and to the extent permitted by applicable statutes and administrative rules. No amendment, waiver, or other consent under this Contract Page 24